Post navigation. To know more, see our, https://medicaldialogues.in/pdf_upload/pdf_upload-124406.pdf. Application of Contempt of Court in this Democracy (By Hridaya Singh & Sahil Telang) Alternative Dispute Resolution … The punishment for death is prescribed under Section 304 A of the IPC itself. The bench made this observation based on the petition filed by a doctor of Haryana based hospital who was accused of medical negligence after the death of the patient following a C Section. Weekly Competition – Week 4 – September 2019, Weekly Competition – Week 2 – October 2019, Weekly Competition – Week 3 – October 2019, Weekly Competition – Week 4 – October 2019, Weekly Competition – Week 1 – November 2019, Weekly Competition – Week 2 – November 2019, Weekly Competition – Week 3 – November 2019, Weekly Competition – Week 4 – November 2019, Weekly Competition – Week 1 – December 2019. Consumer Protection Act. There happen the cases when doctors are also held vicariously liable for the acts of their juniors. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient. What updates do you want to see in this article? The accused objected, but despite she carried on using his washroom. Criminal Negligence is statutorily embodied in section 304A of Indian Penal Code (IPC) – Causing Death by negligence: “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years. So before moving further, it is much important to understand the meaning of ‘rash’ and ‘negligent’ act. Sentence depends on the degree of carelessness seen in the conduct of the accused. vs State Of Uttar Pradesh[vi],  the question was raised upon the intention of accused. Criminal negligence was defined in the case of Bala Chandra v. State of Maharastra[ii], where it was defined as complete or partial negligence or failure in exercising reasonable and proper care and precaution in protecting any particular person or public in general, which would have been essential duty of the accused keeping in mind the circumstances. Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) Volume 1 Issue-3 (Bargavi Baradhwaj) Download. Section 304A is quite good addition by the policymakers in the Indian penal Code, 1860 as it separates the cases in which neither the intention nor the knowledge of the accused was there but the act causes death. Later on charges were amended and the Doctors were released on Bail. A major reason behind these accidents is rash and negligent driving. Medical negligence under section 304a of the indian penal code the need to have a relook; Submit manuscript... Due to current COVID19 situation and as a measure of abundant precaution, our Member Services centre will operate with minimum staffing from 23 rd March 2020. eISSN: 2469-2794 . The donors were her husband and her brother. She is a graduate from Delhi University. A case was registered against him under Section 304A of IPC, and the medical experts of the Special Medical Board doing the investigation, in this case, concluded that the doctor did not perform the surgery according to the accepted procedure and that the negligence in not taking this precaution justified further trial proceedings. Essentials of medical negligence are as follows: In the case of Jacob Mathew v. State of Punjab & Anr. His act was not considered as a ‘rash act’ because the speed of the car was normal and it was morning time and extra care need not have to be taken. Section 304A was added in the year 1870 by the Indian Penal Code (Amendment) Act, 1870. He crashed and minor injuries were caused to the lady and some major injuries to his child. Although the Supreme Court has framed guidelines for a case of medical negligence to come until 304A[xviii], there needs to be a clear and concise provision for medical negligence; medical courts need to be established where the medical experts should be appointed to assist the judges. It was found that though his intention was not there, knowledge was there and he was not held liable under 304A (as prayed by his counsel, considering the act as rash act) but he was held liable under 304 (Part II). A Doctor can be Criminally liable under Section 304A of the Indian Penal Code. Section 304A i.e, causing death by negligence reads as follows: “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”. ‘Rash Act’ can be understood clearly by the case Cherubin Gregory v. State of Bihar[iv]. She can be contacted at editorial@medicaldialogues.in Contact no. She was advised caesarean by the doctor and underwent the same. Medical Negligence under Section 304A of IPC; In the Judgement Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra related to Section 304A of IPC in accordance with medical negligence (death caused by negligence), It was held that "To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a … Furthermore, doctors are being prosecuted under Section 304A of the IPC (causing death of any person by doing any rash or negligent act which does not amount to culpable homicide) which is punishable with imprisonment for a term which may extend to two years. The offence under present section is a Bailable, cognizable and a non-compoundable offence. states that Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The present punishment under this section is often subject to criticism because of its weaker nature. Thereafter, citing medical negligence filed an FIR with the police alleging that the doctor did not attend to the patient after transfusion which resulted in her death. The wording of Section 304-A is ambiguous to the extent that ‘rash or negligent’ is qualified and understood very differently in the Medical Negligence … It was found that though the accused was negligent as he had learning license and was driving without a person having license[x], but it was held that hitting by vehicle of the accused was not the direct consequence of the death of the person in question and hence, accused cannot he held liable under 304A. Section 304A of the Indian Penal Code, 1860, states that whoever causes the death of a person, by any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for two years, or with a fine or both. In the case of Sarabjeet Singh and Ors. Sushil Ansal V. State through CBI ((2014) 6 SCC 173). Then, the trial court was moved with the case which on the application of the accused discharged the doctor and gave relief to the doctor relying upon the judgment of the Supreme Court in Jacob Mathew vs. State of Punjab & Anr. Homicide i.e, killing of a human being by a human being is divided into two parts. Medical negligence is also termed as medical malpractice that is an improper, unskilled, improper or negligent treatment of the patients by their physician, dentist, nurse or other health care professionals English law has not made any special provisions for negligence made by doctors, they are simply treated as one professional among others. Disciplinary action can be taken against him. Medical negligence also known as medical malpractice is improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. She looks after all the Healthcare news pertaining to Medico-legal cases, MCI/DCI decisions, Medical Education issues, government policies as well as all the news and updates concerning Medical and Dental Colleges in India. The article is written by Prasoon Shekhar, from ICFAI Law School, Dehradun. In the present scenario, there is a need of harsher punishment up to a minimum imprisonment of five years as suggested by Law Commission Report. In the course of showing the revolver to B, a bullet gets fired which leads to death of B. If any medical problem is suffered by any of us we refer to a doctor and he/ she cures us by providing relevant medicines or doing the required treatments. Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content. There is a duty to take care of the other party; The other party suffered a legal injury due to breach of duty. It was his duty to take care of pedestrians while crossing pedestrian crossing. The Supreme Court in landmark cases has laid down the guidelines which would be necessary to attract section 304A if there is medical negligence. (2005) 6 SCC 1 case in which the bench had held that in criminal law medical professionals are placed on a pedestal different from ordinary mortals. There must be death of person in question; The death must be caused due to rash or negligent act of accused; and. When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment, under this Indian Penal Code Section 304-A the doctor can be arrested. Abdul Sharif v. State of Haryana (2016 SCC OnLine SC 865). Criminal Medical Negligence Under Section 304(A) (By Bargavi Baradhwaj) October 12, 2020 October 12, 2020 ijlra. VOLUME 1 ISSUE 3. Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. The difference between rash and negligent act was highlighted in the case of Bhalachandra Waman Pathe v. State of Maharashtra[v], accused was driving his car at a normal speed hit two sisters on the pedestrian crossing in which one of them died. This section focuses on death caused due to rash and negligent act done by the accused [2], but when it is observed that there is intention or knowledge, it would fall under the purview of section 299 or section 300 and not under section 304A [3]. [ii] Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. In the case of the Indian Medical Association vs. V.P. The number of cases of medical negligence is increasing day by day. Homicide i.e, killing of a human being by a human being is divided into two parts. ‘Negligent Act’ refers to a breach of duty imposed by law or omission of anything which a man of ordinary prudence should have done. Also, Amrit Lal had removed some soil last year which led to the act. Medical Negligence & Criminal Laws. Medical Negligence has also been interpreted to attract section 304A. Medical Negligence under Section 304A of IPC Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra – In this case, while dealing with Section 304A of IPC (death caused by negligence), the statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap,, was cited with approval: You agree to our use of cookies by continuing to use our site. Under Criminal Negligence, Section 304A of the IPC, 1860 states that whoever causes the death of an individual by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both. The principle of causa causans i.e, immediate cause or last link of the chain applies[vii]. Although there is no specific provision under IPC that deals with medical negligence, but an action can brought against the offender under Section 304A of Indian Penal Code, which deals with ‘causing death by negligence’. On one day, the accused placed naked wire carrying electricity at the entrance of washroom and the lady touched the wire and died. The act must lead to the immediate cause for the death. Thereafter, Punjab and Haryana High Court was approached which upheld the Additional Sessions Judge take on the case. Under section 340A of IPC. But, for an offence to fall under the section (304 A), intention and knowledge of causing death[i] should not be there. Section 304A was added in the year 1870 by the Indian Penal Code … The Punishment for offence under Section 304A has been defined in the section as well. So, section 304A cannot be used for dealing with cases of medical negligence. Proceeding Volume 4 Issue 2. This Section mentions that if a person causes the death of another person by doing a negligent or rash act which does not amount to culpable homicide shall be punished with imprisonment for a term of a maximum of two years, or with fine, or with both. You can click on this link and join: https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA. states that Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. It must be proved that the collision was either mainly or entirely due to the fault of the accused. Medical Laws (11) Mis. Culpable Homicide either amounting to murder or not; and. | Powered by. The Supreme Court held that although the driving was rash and negligent, the accused must have had knowledge that such kind of act of her could lead to death, only then she will be considered punishable under 304 Part II of IPC and not under Section 304A. What Work will you be given if you get a Legal Internship in a Tech Giant like Google, Facebook or Amazon? The essential ingredients of the section are as follows: The section applies when there is a direct connection of the rash or negligent act of accused to the death of the person in question. Under Section 304A of the Indian Penal Code, Death by Negligence is defined as – ‘Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The act of the accused was considered as ‘negligent act’. [xvi], it was held that for imposing criminal liability against the medical practitioner, a high degree of negligence is required. It was held that the death was not a direct consequence as he had not done repairs since long time and building was in a bad condition. In the case of Suleman Rehiman Mulani & Anr v. State of Maharashtra[ix], a person driving a jeep hit a person. Recent incidence in Pune stirred up the hornet’s nest among medical fraternity when Doctors were arrested on the alleged ground of Medical Negligence after the death of a patient and raised its voice against the unjust application of IPC Section 304-II instead of Sec.304-A. Murder. Aggrieved, the doctor moved the Supreme Court which while restoring the trial court's order , allowed the doctor's appeal and stated: The MCI is likely to soon release a sentencing policy guideline for the medical profession that is going to lay down certain standards to determine the guilt and punishment to be accorded to a delinquent doctor in cases of medical negligence. Medical negligence law in India is covered under the criminal act of death by negligence . (2) Offences against Women and Children (17) Property Laws (4) Research Papers (1) Social Issues (69) Sports Law (2) Taxation Laws (12) Recent Posts. In our country, doctors enjoy the status of second god. The Contempt of Courts Act, 1971; Right to Information; The Doctrine of Inequitable Conduct and Patent Unenforceability; Need for Witness Protection in Legal Spectrum In the case of Indian Medical Association v. VP Shantha[xv], the Supreme added medical profession in the term ‘service’ as under CP Act, 1986. In order to … The guidelines for imposing criminal liability for medical negligence are: In the case of Parmananda Katara v. Union of India[xvii], the Supreme Court observed that the duty of the doctor is to save lives and courts should assist in the same. The present section talks of rash and negligent Act, and if the act does not fall within culpable homicide, it falls within the present provision. In the year 2018, there have been a total of 467044 accidents[xi]. The criminal process once initiated subjects the medical professional to serious embarrassment and … 1. When offence of medical negligence S 304A of IPC against doctor is not made out? Medical Negligence Medical negligence is a breach of duty on the part of the defendant who has a legal as well as a moral duty to look after his/her patient. In the case of State of Rajasthan v. Hari Singh[xii], it was held that only driving at a faster rate do not make out the offence as under 304A. “Section 304A. The Supreme Court, on several instances favoured a harder punishment[xvii] and at it has also asked the legislature to amend the provision. An act to fall under this section, the death must be caused as a direct result or in consequence with act of the accused. Section 304A of the Indian Penal Code talks about causing death by negligence or rash act. In the case of State of Haryana and Ors. In these, either there is knowledge or intention, the only difference lies in gravity and intensity. The concept of vicarious liability, how… Medical negligence under section 304a of the Indian penal code - the need to have a relook Volume 4 Issue 2 - 2017 Seema PS Cochin University of Science and Technology, India Correspondence: PS Seema, Assistant Professor, Cochin University of Science and Technology, School of Legal Medicine, Kochi, Kerala, India, Tel 9694963875, Email Received: January 30, 2017 | Published: February 15, 2017 … Section 304A Indian Penal Code titled Causing death by negligence. For an act of rash and negligent driving, the factors of knowledge and intention of the accused should not be there. For an act to fall under this section there should be absence of both knowledge and intention. If you are in need of a criminal defense lawyer visit Hurwitz Law Group, Inc LA criminal defense lawyers. Act of the accused must not amount to culpable homicide. In the case of State of Punjab v. Amrit Lal Jain[viii], Amrit Lal Jain, the principal of a school was held liable under 304A because of death of two teachers and sixteen students because of falling debris of adjacent Shyamlal’s building. Covid has created tremendous opportunity for lawyers, Jurisdictive ploy to combat dilatory tactics, The Patents Act, 1970 : Case analysis – Novartis Ag v. Union of India, Introduction to domestic violence on children. 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